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Frye and Lafler: Much Ado About What We Do — And What Prosecutors and Judges Should Not Do (Inside NACDL)

For practicing criminal defense lawyers, it is hardly news that the responsibility to provide effective representation to clients throughout the entire case is a constitutional mandate. But for some reason, many commentators viewed the recent decisions in Lafler1and Frye2 as defining some wholly new right, or as Justice Scalia said in dissent, “the Court today opens a whole new field of constitutional law: plea bargaining law.”3 It is doubtful that most practitioners would agree. For as long as plea offers have been a feature of criminal practice, responsible and competent lawyers have recognized a responsibility to tell their clients of the offer and do their best to accurately advise on the pros and cons. Indeed, professional standards have long recognized this duty.4 To the extent that the U.S. Supreme Court has definitively held that the constitutional right to effective assistance of counsel embraces the plea bargaining phase, there is only one real question: what took

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